Tuesday, April 28, 2020

EEOC Guidance on Employee Testing for COVID-19

The Equal Employment Opportunity Commission (EEOC) has released updated guidelines for employers managing their workforces during the COVID-19 pandemic. The guidelines provide employers with further instruction as the federal government and many states plan for the following phases of the various “stay at home” orders. This focus of this post will be on employee testing and medical confidentiality.

Employee Testing

In accordance with the American with Disabilities Act (ADA), employers may mandate medical tests for employees so long as the test is “job-related and consistent with business necessity.” COVID-19 is considered a global pandemic and employees, who are ill with the virus, pose a direct threat to the health of others. Thus, employers may administer COVID-19 tests to employees prior to entering the workplace.

Employers looking to administer tests should consult the Food and Drug Administration’s (FDA) FAQ on Diagnostic Testing page for more information.

The EEOC recommends employers should maintain “to the greatest extent possible” that employees follow recommended infection control measures including social distancing and regular handwashing to prevent workplace transmission of COVID-19. The Centers for Disease Control (CDC) provides guidance for businesses and employers on limiting employee exposure to the virus, cleaning and disinfection of workspaces, and other information.

Medical Confidentiality

The proper storage of medical information is paramount in maintaining employee confidentiality. Under the ADA, all employee medical information must be stored separately from other employee information. Employers may store COVID-19-related information along with an employee's existing medical records. This information may include statements that an employee has or suspects they have the virus in addition to other information or documentation the employer has from questioning the employee regarding symptoms.

Employers may maintain a log of employee temperature checks, but the results of which must be kept confidential. As of March 21, 2020, the EEOC issued updated pandemic preparedness guidelines, which affirm that because public health officials have documented community spread of COVID-19 employers may administer temperature checks.

Employers may disclose the name of an employee to a public health agency upon learning that an employee has COVID-19. Further, temporary staffing agencies or contractors that place employees in an employer’s workplace may notify the employer if they learn an employee has COVID-19.

Along with information on testing and medical confidentiality, employers should also keep updated on EEOC guidelines regarding reasonable accommodations under the ADA, furloughs and layoffs, workplace discrimination during the pandemic, and return-to-work procedures.

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